Introduction of Feuds. Spelman on Feuds. 63. IT SECTION 1. T is now universally admitted that the feudal system, with its fruits and services, as established in Normandy, was first introduced into England by William the Conqueror, in those possessions which were granted by him to his followers; and that about the twentieth year of his reign the feudal system was formally and generally adopted. 2. In consequence of this event it became a fundamental maxim, or rather fiction of our law, that all real property was originally granted by the King, 1 Inst. 65. a. and held mediately or immediately of the crown, in consideration of certain services to be rendered by the tenant. The thing holden was therefore called a tenement; the possessors thereof tenants, the manner of their possession a tenure. And Lord Coke says, "In the law of England we have not properly allodium, that is, any subject's land that is not holden." Id. 1.b. edit. 1778. 3. Although feuds were not originally hereditary in those countries where the feudal law was first established, yet we find that feuds were, from the beginning, hereditary, where lands held by an allodial tenure were voluntarily converted into feuds. Thus Basnage, in his Commentary on the Customs of Nor- Tome 1. 153. mandy, says, that when Rollo became master of that province, he granted considerable portions of it to his companions, and to gentlemen of Britanny, as hereditary feuds; that he also recalled a number of the antient inhabitants, who had held their estates by hereditary right, and restored them to their possessions in as full and ample a manner as they had held them under the kings of France. 4. When William I. established himself in England, he certainly granted to his followers the inheritance of all the estates which he distributed to them; for some of those estates are possessed by their descendants at this day: and when he persuaded the Anglo-Saxon proprietors to hold their lands by a feudal tenure, he as certainly allowed them to retain the inheritance. 2 Comm. 60. 5. Sir W. Blackstone observes that there seem Division of Tenures. to have subsisted among our ancestors four principal species of lay tenures, to which all others may be reduced; the grand criteria of which were the natures of the several services or renders that were due to the lords from their tenants. The services in respect of their quality were either free or base; in respect to their quantity, and time of executing them, were either certain or uncertain. Free services were such as were not unbecoming the character of a soldier or a freeman to perform; as to serve under the lord in the wars, to pay a sum of money, and the like. Base services were such as were fit only for peasants, and persons of servile rank; as to plough the lord's land, to make his hedges, to carry out his dung, or other mean employments. The certain services, whether free or base, were such as were stinted in quantity, and could not be exceeded on any pretence; as to pay a stated annual rent, or to plough such a field for three days. The uncertain depended on unknown contingencies; as to do military service in person, or pay an assessment in lieu of it, when called upon, which are free services, or to do whatever the lord should command which is a base or villein service. 6. From the various combinations of these services arose the four kinds of lay tenure which subsisted in England till the middle of the seventeenth century; and three of which subsist to this day. First, where the service was free but uncertain, as military service; that tenure was called chivalry, servitium militare, or knight 'service. Secondly, where the service was not only free, but also certain; as by fealty only, by rent and fealty, &c. That tenure was called liberum socagium, or free socage. These were the only free holdings or tenements; the others were villeinous or servile; as thirdly, where the service was base in its nature, and uncertain as to time and quantity, the tenure was purum villenagium, absolute or pure villenage. Lastly, where the service was base in its nature, but reduced to a certainty. This was still villenage, but distinguished from the other by the name of privileged villenage, villenagium privilegiatum; or it might be still called socage, from the certainty of its services, but degraded by their baseness into the inferior title of villanum socagium, villein socage. 7. Although, in the first instance, all the lands Tenure in in England were held immediately of the king, yet Capite. in consequence of the right of subinfeudation which prevailed in those times, the king's chief tenants granted a considerable part of their estates to inferior persons, to hold of themselves; by which mesne or middle tenures were created; from whence arose several distinctions, as to the manner in which lands were held. 8. Estates might be held of the king, or of a private individual, in two ways; either as of his person, or as of an honor or manor of which he was seised; and every holding of the person was, strictly speaking, a tenure in capite; but still that ex- 1 Inst.108.a. 12 Rep. 136. pression was always confined to a tenure of the king, in right of his crown and dignity; or, as it was formerly expressed, at de corona, or ut de persona z for wherever the holding was of the person of a Fitz. N. B. 3. subject, it was called a tenure in gross. 9. Tenure in capite was in general so insepa rable from a holding of the person of the king, that if lands were granted by the king, without reserving any tenure, or absque aliquo inde reddendo, Lowe's Case, or the like; there the lands, by operation of law, 9 Rep. 122. should be held of the king in capite; because that tenure was the most advantageous to the crown. 10. Where an honor or barony, originally created by the king, returned to the crown, by forfeiture or escheat, the persons who held their lands of such honor or barony became tenants to the crown, and were said to hold of the king, ut de honore de A., &c. This distinction of tenure was extremely important to those who held of such honors or baronies; for by an article of the magna charta of 2 Inst. 64. King Henry III. c. 31., it is declared that persons holding of honors escheated, and in the king's hands, shall pay no more relief, nor perform morė services, to the king, than they should to the baron, if it were in his hands. Fitz, N. 11. Where lands were held of the king, as of B. 5. 8. an honor, castle, or manor escheated to the crown, Dyer, 44. 1 Inst.108.a. the tenure was therefore not in capite. lands were granted by the king, to as of his manor of A., this was not a tenure in capite. St. 1 Edw. 6. c. 4. Estwick's Case, And where hold of him 12. Thus where lands were granted by King 12 Rep. 135. Philip and Queen Mary; tenendum de nobis ut de manerio nostro de Greenwich in capite; it was resolved that the lands were held of the king, as of the honor, and not in capite. The reason was, that tenure of the king in capite was as much as to say tenure in gross, or of the person of the king. And though it appeared from antient records that formerly all tenures in gross, or of the person of a subject, were called tenures in capite, yet, of late time, dicitur de rege solummodo terras teneri in capite. Case of Statute of tores. 13. King James I., by a commission under the great seal, authorized certain commissioners to grant the manor of Dale to A. and his heirs. The commissioners granted the lands to A. and his heirs, to hold by knight service, as of his majesty's castle of Dublin. It was resolved by a majority of the judges in Ireland that this was not a tenure in capite. 14. In the case of private individuals, any person might formerly, by a grant of lands, have created a tenure of his person, or of any honor or manor whereof he was seised. If no tenure was 2 Inst. 501. reserved, the feoffee would have held of the feoffor, |